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WHETHER TO SEEK REVIEW OF A TRIAL COURT ORDER BY A PETITION FOR WRIT OF MANDATE

A frequently asked question by trial lawyers is whether and when to seek review of a trial court order by way of a petition for writ of mandate or prohibition (a “writ”) instead of a direct appeal following entry of judgment.

Can I write a winning writ, you ask? Isn’t that an oxymoron? The statistics expose the truth: For civil writs, approximately 90 percent of writs are denied. In 2013, for original proceedings, such as writs, filed in the California Court of Appeal, 8,591 trial court orders were affirmed, 954 were reversed and 295 were dismissed. (See California Court Statistics for 2013 by the Judicial Council). One of the reasons for the scarcity of winning writs is due to the “extraordinary” nature of writ relief. Unlike appeals, which are heard as a matter of right, relief through writ review is deemed extraordinary, equitable and completely discretionary. Thus, even if a trial court ruling is incorrect, the appellate court is not required to grant immediate writ review. The appellate court can choose instead to let the aggrieved party wait for an appeal from the final judgment to review the issue.

A Writ is an “Original Proceeding”. An original proceeding is an action that may be filed and heard for the first time in an appellate court. This action is not an appeal; rather, it is ordinarily a petition for a writ. The major civil common law writs are: a writ of mandamus, which instructs a lower court to perform mandatory duties correctly, a writ of prohibition (or an order that forbids certain actions), and a writ of certiorari (or writ of review). The major criminal law writ is a writ of habeas corpus.

Statutory Writs. The California Legislature has authorized review of particular rulings by writ. These are commonly called statutory writs, which sometimes are the only way of securing appellate review of certain rulings. You should review the statute permitting writ review of such orders subject to statutory writ review, because there are often statutory deadlines and unique procedures governing some of these writ proceedings.

When the statute makes a writ petition the exclusive method of obtaining appellate review from the particular ruling, the failure to file a timely statutory writ petition waives the right to a subsequent common law writ, and the right to review of the ruling on a subsequent appeal after the judgment. The following trial court orders may only be reviewed by way of a statutory writ:

An order granting a State Bar application for the court to assume jurisdiction over the law practice of an attorney who has died, resigned or become inactive, or is disbarred or suspended. (Bus. & Prof.C. § 6180.13; Benninghoff v. Super.Ct. (State Bar of Calif.) (2006) 136 Cal.App.4th 61, 66).

For other statutory writs, if the Legislature has not required a writ petition as a prerequisite to appellate review, review of the ruling may occur on a subsequent appeal even absent a writ petition. (In re Joann E. (2002) 104 Cal.App.4th 347, 353). For example, an order granting or denying a motion for change of venue is reviewable by petition for writ of mandate pursuant to Code Civ. Proc., § 400, which sets a filing deadline for the writ petition of 20 days after service of the written notice of the order. Here, the statute does not make a writ petition the exclusive method of appellate review of a venue order. Although a venue ruling is not directly appealable, the order is reviewable on appeal from the final judgment in the main action.

However, when deciding to whether to file a non-exclusive statutory writs, you should consider the impact of the harmless error rule. Even in situations where review by statutory writ petition is not the exclusive method of obtaining appellate review, as a practical matter the impact of the harmless error rule on appeal may make review after final judgment essentially meaningless.

Common Law Writs. When deciding whether to file a common law writ of an interlocutory superior court order, counsel should consider whether the issue satisfies any of these general criteria for determining the propriety of an extraordinary writ: (1) the issue tendered in the writ petition is of widespread interest, or presents a significant and novel constitutional issue; (2) the trial court’s order deprived petitioner of an opportunity to present a substantial portion of his cause of action; (3) conflicting trial court interpretations of the law require a resolution of the conflict; (4) the trial court’s order is both clearly erroneous as a matter of law and substantially prejudices petitioner’s case; (5) the party seeking the writ lacks an adequate means, such as a direct appeal, by which to attain relief; and (6) the petitioner will suffer harm or prejudice in a manner that cannot be corrected on appeal. (Omaha Indem. Co. v. Super.Ct. (Greinke) (1989) 209 Cal.App.3d 1266, 1273-1274.)

The extent to which these criteria apply may depend on the facts and circumstances of the case, however, the following are mandatory criteria which must be met:

Your client, (the petitioner), has no other “adequate remedy in the ordinary course of law.” If the challenged order is immediately appealable, writ review will not lie, unless special circumstances render review by the lengthy process of an appeal inadequate (the issues presented are of great public importance and merit prompt resolution). If not immediately appealable, timely appellate intervention by extraordinary writ is necessary because review by appeal may be “inadequate” in light of facts such as prejudice from delay and the expense of trial or the certainty of reversal and need for retrial.

Your client will suffer irreparable injury if the writ is not granted (i.e., harm or prejudice that cannot be corrected on appeal).

Your client must also have a “beneficial interest” in the lawsuit, (Code Civ. Proc., §§ 1069, 1086, 1103), which means that petitioner must be directly and prejudicially affected by the particular order or judgment, over and above the interest held in common with the public at large. This is a required showing because your client does not have to be a party to the action (as an appellant must be) to file a writ petition.

As you can see, there are a multitude of details to consider when deciding to file a writ petition, and that is only the first step. In the next installment of Appellate Notes I will discuss some of the mechanics of writing and filing a writ petition.

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